In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 03-1968

BILL J. BENEFIEL,

Petitioner-Appellant,

v.

CECIL DAVIS,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Southern District of Indiana, Terre Haute Division.

No. 00 C 057—Richard L. Young, Judge.

____________

ARGUED DECEMBER 4, 2003—DECIDED JANUARY 30, 2004

____________

 Before BAUER, EASTERBROOK, and EVANS, Circuit Judges.

EVANS, Circuit Judge. In 1988, Bill J. Benefiel was

sentenced to death for murdering Delores Wells in Terre

Haute, Indiana, in 1987. His conviction for the murder, as

well as for criminal confinement, rape, and criminal deviant

conduct, and his death sentence have been upheld by the

Indiana Supreme Court both on direct appeal, Benefiel v.

Indiana, 578 N.E.2d 338 (Ind. 1991), and on appeal from

the denial of a postconviction motion, Benefiel v. Indiana,

716 N.E.2d 906 (Ind. 1999). He is now before us appealing

the district court’s denial of his petition for a writ of habeas

corpus pursuant to 28 U.S.C. § 2254. We start with the

facts, which curl the stomach and numb the mind.
2 No. 03-1968

The story of this gruesome crime begins with another

victim, Alicia Elmore. On October 10, 1986, at approximately 7:30 in the evening, Elmore, who was then 17 years

old, walked to a gas station two blocks from her home in

Terre Haute, Indiana, to purchase soft drinks for her

mother and brother. Her family did not hear from her again

for 4 months.

During those months, Benefiel, who had abducted Elmore

off the street, tortured and raped her repeatedly, 64 times

before she stopped counting. At various times he stuffed

clothing or toilet paper in her mouth and put duct tape over

her eyes and mouth. For the first 2 months her eyes were

glued shut. He fastened her to a bed, naked, with a chain

around her neck. At times he handcuffed her to the side

railing of the bed and tied her feet together with a rope.

When she screamed he slapped her and cut her with a

knife. He cut off one of her fingernails. He cut off some of

her hair and told her he was putting it in a scrapbook with

hair samples from other women he had raped. For the first

months she was fed only baked potatoes and water and was

not allowed to use the bathroom without his permission. At

one point he stuck a gun in her vagina and forced her to

have anal intercourse.

She was convinced escape was impossible because of

his dogs, which she could hear from inside the house. In

addition, of course, she was terrorized. Benefiel asked her

whether she wanted to die quickly or slowly. When she said

quickly, he said her death would be long and painful. She

had no reason to doubt it.

About 10 weeks into her captivity, Elmore saw, for the

first time, the house in which she was imprisoned. A few

weeks later she was moved to another house across the

street from the first one. In the second house, Benefiel

again chained her to the bed and had sexual intercourse

and oral sex with her. In this house she could hear the
No. 03-1968 3

police scanner, which Benefiel used to determine which

houses he could burglarize.

About a month later, in January 1987, Elmore heard

noises which indicated to her that someone else was in

the house. It turned out to be Delores Wells. Elmore first

saw Wells lying naked and handcuffed on a bed. She had

tape over her eyes and paper towels stuffed in her mouth,

which was then taped over. On February 4, while Elmore

watched, Benefiel began beating Wells, first with his fist

and then with an electrical cord. Another time, he cut

Wells’s hair and cut off her finger. He also told her she

would die slowly.

On February 7 Benefiel left the house, and when he returned he was muddy from the waist down. He told Elmore

that he had been digging a grave which was big enough for

two people—she assumed for Wells and her. That day,

Benefiel also made Elmore watch as he put super glue in

Wells’s nose and pinched it together. He then put toilet

paper in her mouth and taped it shut. Wells began squirming, trying to breathe.

A little later Benefiel chained Elmore to her bed and left

the house. When he returned about 2 hours later he told

Elmore that he had killed Wells by tying her arms and

legs to two separate trees. He then wrapped duct tape

around her head until she died. To make sure she was dead

he “popped” her neck. Then he buried her.

On February 11 Benefiel told Elmore that the police were

coming. He pushed her into a crawl space above the ceiling

and warned her not to make a sound. The police arrived

with a search warrant. Benefiel first told them he did not

know the person they were looking for, but a few minutes

later he told them where Elmore was. When she was found

she told the police, in Benefiel’s presence, that she was in

the house voluntarily, surely an unlikely story. Later, at a

hospital, she told the police what had happened to her.
4 No. 03-1968

During the search of the house the police also discovered a

mask, a post-hole digger, a rake, a shovel, a pocket knife,

.22-caliber rifle shells, and rope.

On February 22 volunteers searching for Wells found her

body under a freshly disturbed plot of ground. An autopsy

revealed internal and external injuries to the anus and

injuries to the vagina indicating a violent rape. The cause

of her death was asphyxia. In the trash at Benefiel’s home

the police found duct tape which had hairs on it similar to

the head, eyebrow, and eyelash hairs of Wells.

A jury trial on the many charges we mentioned earlier

resulted in a bevy of convictions. The jury recommended the

death penalty and the trial judge imposed it. As we said,

Benefiel’s conviction was upheld by the Indiana Supreme

Court. He then filed this petition for a writ of habeas corpus

pursuant to 28 U.S.C. § 2254, asking the federal district

court to set aside his conviction and death sentence. The

petition was denied. In this appeal from that denial, he

contends that the stress of the trial caused him to became

incompetent to aid in his own defense. He also claims that

he was deprived of the effective assistance of counsel

because his attorney at trial and on direct appeal did not

argue that the judge’s instructions to the jury in the penalty

hearing included an unconstitutionally narrow definition of

mitigation and that, in announcing the sentence, the judge

used the same overly narrow definition. Benefiel also says

he was denied the effective assistance of trial counsel

because his attorneys failed to move to suppress testimony

of two women who said that Benefiel raped them years

earlier, testimony which the trial court relied on as aggravating factors in support of the decision to impose the death

penalty.

Because Benefiel’s petition for a writ of habeas corpus

was filed after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 govern
No. 03-1968 5

our analysis. With respect to a claim that was adjudicated

on the merits in state court, we may not grant a writ unless

the state court decision was “contrary to, or involved an

unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), or was “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” § 2254(d)(2). In

the latter determination, a factual issue “made by a State

court shall be presumed to be correct” and the “applicant

shall have the burden of rebutting the presumption of

correctness by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1). See Williams v. Taylor, 529 U.S. 362 (2000).

We turn first to the issue of Benefiel’s competency to aid

in his own defense. It is well-settled that a defendant may

not be tried unless he has “sufficient present ability to consult with his lawyer with a reasonable degree of rational

understanding—and . . . a rational as well as factual

understanding of the proceedings against him.” Dusky v.

United States, 362 U.S. 402 (1960); see also Cooper v.

Oklahoma, 517 U.S. 348, 354 (1996).

In Benefiel’s case, two competency hearings had been held

prior to trial. Each time, Benefiel was found to be competent. The issue arose for the third time during Benefiel’s

testimony near the end of the guilt phase of the trial. As his

testimony began he was asked about his unfortunate

childhood, including sexual abuse at the hands of one of his

adoptive mother’s boyfriends. Benefiel showed reluctance to

answer the questions. He said to his attorney, “I thought

you wasn’t even going to ask me that.” The lawyer said he

did not promise not to ask and said, “We need to hear about

it . . . .” Benefiel answered, “Yeah, but they will put it in the

paper.” He also testified about refusing to go to school

because he thought everyone was laughing at him. There

are other similar instances of Benefiel’s apparent reluctance

to testify or his avoidance of situations he doesn’t like.
6 No. 03-1968

Then the questioning reached the matter of Alicia Elmore.

Benefiel said, “That’s a hard one to talk about.” His testimony began with his version of the story. He said he was

helping her out, letting her stay with him to avoid her

unpleasant home situation. He testified briefly about taking

her to a hospital in Vincennes. (She in fact did go to a

hospital because she was bleeding vaginally. She used the

name Mary Benefiel and did not cry out for help because

she said she was afraid Benefiel would kill someone.) Then

the judge called a recess, after which Benefiel refused to

resume the stand. This caused a bit of consternation for all

involved. The prosecutor said in this situation he was “a

little limited” as to cross-examination. The judge replied,

“That’s putting it mildly.” There was a natural concern that,

as the judge said, “he gets up and testifies to what he wants

and then refuses to answer any questions on it.” After

considerable discussion of the situation and also of what

explanation to give the jury for Benefiel’s absence from the

courtroom, it was agreed that another hearing as to

Benefiel’s competency would be held. At this mid-trial

hearing, Dr. Stephen Stewart, a clinical psychologist,

testified essentially that Benefiel was not malingering and

that he was not competent to continue with the trial. Dr.

Stewart’s view was that the trial was an extremely stressful

and traumatic experience for Benefiel, and his usual coping

skills of dissociating from what was going on around him

proved to be inadequate during his testimony. On crossexamination, Dr. Stewart was asked whether he found it

significant that when Elmore and two other rape victims

pointed at Benefiel as their assailant, he smiled. He did; he

thought it might be expected of the perpetrator of the

crimes but not of the person who was testifying.

One of the defense attorneys also testified regarding his

interaction with Benefiel after what he described as his

“mental breakdown.” Finally, Benefiel himself testified,
No. 03-1968 7

basically repeating that he could not go back into the

courtroom.

The judge, who had been observing Benefiel for several

days at this point, most likely would draw one of two conclusions. The first would be that Benefiel, who, we remember, had previously twice been found competent to stand

trial, had suffered some sort of breakdown during his testimony which rendered him unfit to proceed. The second

would be that Benefiel was trying to have the best of both

worlds. He could testify about his pathetic upbringing and

show the jury, by his reluctance to talk about it, how

painful it was, but at the same time avoid going into detail

about Elmore or Wells. And perhaps most importantly, he

could avoid cross-examination.

The trial judge knew manipulation when he saw it. He

said he believed Benefiel could make a decision to go into

the courtroom and testify or not. In other words, he did not

think Benefiel was unable to enter the courtroom but was

choosing not to. The judge continued:

The fact that he chooses not to be in there at this

particular stage makes sense logically from some

standpoints. For one thing, he was yet to face crossexamination in his testimony, and two, he had really

not gotten to the parts of the story which could work to

his disadvantage, this is how [he] portrayed his background which would create some sympathy, and we

took the break right about the time we got to the Alicia

Elmore section and did not get into Delores Wells.

There seems to me to be some logical connection there

which would justify perhaps as the Prosecutor has

suggested, there is some manipulative action going on

here.

Tr. at 2552-53. The Indiana Supreme Court found the trial

judge’s decision to be supported by the record.
8 No. 03-1968

1 At the time, the statute read, “The court shall make the final

determination of the sentence, after considering the jury’s recommendation, and the sentence shall be based on the same standards that the jury was required to consider. The court is not

bound by the jury’s recommendation.”

 Benefiel urges us to find that the state court’s finding

that he was competent was “based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.” The argument is based in

large part on a contention that the only evidence which was

before the judge supported Benefiel’s claim. Were we to

accept that argument, we would be taking from the judge

the ability to assess the credibility and persuasiveness of

the evidence. This trial judge was not convinced by the

evidence presented. Relying on his own observation, as well

as the testimony of psychological experts from the earlier

hearings, he was convinced that nothing had changed and

that Benefiel remained competent to stand trial. We cannot

say that the decision of the Indiana Supreme Court upholding that determination was unreasonable in any way.

Benefiel also alleges that he was denied the effective

assistance of counsel at both his trial and on appeal to the

Indiana Supreme Court. Both claims involve the trial

judge’s understanding of mitigation as revealed in his

sentencing decision and in the jury instructions. To understand why there are two claims which seem to go to

the same perceived problem, one must remember that in

Indiana at the time, in the penalty phase of the proceeding,

the jury issued a recommendation as to whether the death

penalty should be imposed. Its recommendation, however,

was advisory, not binding. It was the judge who bore the

final burden of imposing a death sentence. Indiana Code

§ 35-50-2-9(e)(2).1

 Benefiel claims that his trial attorneys

were incompetent for not objecting to the jury instructions
No. 03-1968 9

and that his attorneys were incompetent at both the trial

and on appeal for not arguing that the sentencing judge

applied an unconstitutionally narrow definition of mitigation in evaluating whether to impose the death sentence.

The well-established legal principles that govern claims

of ineffective assistance of counsel are set out in Strickland

v. Washington, 466 U.S. 668 (1984). An ineffective assistance claim has two components. First, a petitioner must

show that counsel’s performance was deficient. Secondly, he

must show that the deficiency prejudiced his defense. To

establish deficient performance, a petitioner must demonstrate that the representation “fell below an objective

standard of reasonableness.” At 688. The Court has “declined to articulate specific guidelines for appropriate

attorney conduct and instead have emphasized that ‘[t]he

proper measure of attorney performance remains simply

reasonableness under prevailing professional norms.’ ”

Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003), quoting

Strickland, 466 U.S. at 688. To establish prejudice, the

petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

It was the Strickland standard on which the Indiana

Supreme Court relied. As to the jury instructions, the court

was “satisfied that a lawyer performing reasonably well

could decide the instructions as a whole gave the jury an

adequate picture of its role and take a pass on objecting to

this particular instruction.” Benefiel, 716 N.E.2d at 914. We

cannot conclude that this finding was “contrary to, or involved an unreasonable application of” Strickland or of

various Supreme Court cases analyzing jury instructions,

particularly instructions on mitigation.
10 No. 03-1968

The instruction to which Benefiel objects is “[m]itigating is defined as a fact or circumstance which makes

an offense appear less severe.” Benefiel argues that the

instruction is unconstitutional in that it impermissibly

limited the jury’s consideration of mitigating evidence to the

circumstances surrounding the offense. In other words, he

contends that it indicated that the only relevant mitigating

evidence was that which could, for instance, justify his

actions in committing the offense. There was, he argues, a

reasonable likelihood that the jury applied the challenged

instruction in a way that prevented consideration of

relevant mitigating evidence, such as his difficult childhood.

The scope of mitigation is also the basis of his claim that

counsel at both his trial and on appeal were incompetent for

failing to raise the issue that his Eighth Amendment rights

were violated at sentencing because the judge himself

applied an unconstitutionally narrow definition of mitigation in evaluating whether to sentence Benefiel to death.

In support of his argument, Benefiel calls our attention to

Eddings v. Oklahoma, 455 U.S. 104 (1982). In that case, the

sentencing judge stated that he would not consider in

mitigation the circumstances of Eddings’ unhappy upbringing and emotional disturbance. The Court said that the

sentencer may not “refuse to consider, as a matter of law,

any relevant mitigating evidence.” At 114 (emphasis in

original).

It is a long step from what happened in Eddings to what

happened here. We will look at the jury instruction first.

The jury instruction at issue is a single sentence from the

entire charge to the jury. But we do not evaluate a single

sentence in isolation. It is well-established that a “single

instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall

charge.” Boyd v. United States, 271 U.S. 104, 107 (1926);
No. 03-1968 11

Cupp v. Naughten, 414 U.S. 141, 146-47 (1973). The instructions must be such that the jury is not precluded from

giving effect to the mitigating evidence. Weeks v. Angelone,

528 U.S. 225 (2000). When we look to the instructions as a

whole, we do not find that the instructions unconstitutionally limit the jury’s consideration of mitigating evidence.

The jury was instructed that

[t]he law provides that you may also consider the

following mitigating circumstance: The defendant: 1.

has no significant history of prior criminal conduct; 2.

was under the influence of extreme mental or emotional

disturbance when he committed the murder; 3. defendant’s capacity to appreciate the criminality of his

conduct or to conform his conduct to the requirements

of law was substantially impaired as a result of mental

disease or defect; 4. any other circumstances appropriate for consideration.

The sentence Benefiel objects to was part of an instruction

which stated in full:

Mitigating is defined as a fact or circumstance which

makes an offense appear less severe. So, even though a

mitigating circumstance does not constitute a justification of or excuse for the offenses in question, it

should, in the interests of fairness and mercy, be considered as reducing Bill J. Benefiel’s moral culpability.

The jury was also told, “You may consider all the evidence

introduced at the trial, together with any new evidence

presented at this hearing.”

The hearing included evidence from a jailer at the jail

where Benefiel was held prior to trial. He testified that

Benefiel suffered mood swings in jail and was suicidal. It

included testimony from Benefiel’s birth mother, Norma

Gilley, who testified that she gave Bill away at birth to a
12 No. 03-1968

basically unfit mother in exchange for a place to stay.

Although she knew the adoptive mother, Gilley showed no

interest in Benefiel’s life or in whether one of the adoptive

mother’s boyfriends was abusing him. She knew about his

trial on these charges but did not voluntarily come forward

to help. She testified on Benefiel’s behalf only because she

was subpoenaed by his attorney. There was testimony from

Marilyn Benefiel, the petitioner’s wife, who described mood

swings and outbursts of violence. She also testified that she

planned to stay married to Benefiel and that their three

children loved him. In addition, all of the evidence from

trial, including that from psychologists, was incorporated

into the penalty hearing. Furthermore, counsel said in

closing argument that mitigating circumstances “have to do

with whether or not you think that the defendant’s mental

state or mental disease or whatever mental problems he

has, give him not an excuse, not a justification, but give him

a reason to expect some mercy in the decision you are about

to make.”

When we view the instructions as a whole and the evidence which the instructions notify the jury they can

consider, we think that, as in Boyde v. California, 494 U.S.

370, 381 (1990), “there is not a reasonable likelihood that

[the] jurors interpreted the trial court’s instructions to

prevent consideration of mitigating evidence of background

and character.” In Boyde, the defendant had objected to an

instruction which listed 11 examples of mitigating evidence,

all but one of which focused on the specific crime at issue or

on prior criminal activity. Boyde contended that the

remaining provision, a so-called catch-all provision, “did not

allow the jury to consider and give effect to non-crimerelated mitigating evidence, because its language— ‘[a]ny

other circumstance which extenuates the gravity of the

crime’—limited the jury to other evidence that was related

to the crime.” At 378 (emphasis in original).
No. 03-1968 13

The Court disagreed. The instruction at issue allowed the

petitioner to argue that his background and character

extenuated or excused the seriousness of the crime. Further, the jury was instructed to consider any other circumstance that might excuse the crime, which would include his

background and character. The Court also found that the

“context of the proceedings would have led reasonable

jurors to believe that evidence of petitioner’s background

and character could be considered in mitigation.” Boyde,

494 U.S. at 383.

Given the entire picture which emerges on this issue, we

cannot find that the Indiana Supreme Court’s conclusion

that counsel “performing reasonably well could decide the

instructions as a whole gave the jury an adequate picture

of its role . . .” and that therefore the representation was

not deficient is an unreasonable application of Strickland.

We reach the same conclusion when we look at the

sentencing proceeding and the judge’s understanding of

mitigating circumstances. In addition to the evidence in

mitigation that the jury heard, the judge also heard from

Elmore, Wells’s parents, and Wells’s husband. All four

testified that they did not want Benefiel to be sentenced to

death. They wanted him to remain alive in prison and to

have to confront daily what he had done. Death, in the

words of Elmore, was the “easy way out.”

After hearing from the victims, the judge first went

through the statutory mitigating factors, finding that none

of them applied. He then considered Benefiel’s mistreatment while he was young and referred to Benefiel’s background. But ultimately he concluded that there was “no

excuse or justification to explain or mitigate against these

incomprehensible acts . . . .” He said, not without justification, that to “weigh the aggravating factor against any

possible mitigating factors in this case is like as the old

axiom goes, comparing a mountain to a molehill.” While
14 No. 03-1968

there are phrases during the sentencing hearing that can be

interpreted to limit the scope of mitigation, it is clear that

the sentencing judge was aware that the evidence of

childhood trauma and other psychological factors were, in

fact, what mitigation was all about. It was simply that in

his view those factors did not tip the scales when they were

weighed against the aggravating factors. We cannot find

that the failure to raise this issue violated the Strickland

standard.

Benefiel’s final claim is that his trial counsel was ineffective for failing to move to suppress statements from two

women who testified that Benefiel had raped them 7 and 9

years earlier. A woman named Diana testified that a man

wearing a black ski mask broke into her bedroom and stood

over her bed. He was holding a gun. He asked her for money

and then took her to another bedroom where he tied her to

the bed with an electrical cord. He raped her and forced her

to perform oral sex on him. After these acts, her assailant

took off his mask and she saw his face. No one was ever

charged with the crime but, during the present trial, Diana

testified that the man who raped her was Benefiel. The

second witness was Mary, who testified that she was

walking across a parking lot when a man wearing a nylon

mask and carrying a gun grabbed her. She also was raped,

tied up, and put into a shed. Later the assailant put her in

the trunk of his car. When he took her out of the trunk he

raped her again. He then put putty in her eyes and taped

over the putty. She was raped again. At one point the putty

slipped from her eyes and she saw the assailant, who had

removed his mask. She positively identified Benefiel.

In evaluating this evidence, the Indiana Supreme Court

concluded that under Indiana law it was admissible to show

a “common scheme or plan.” The court also found that the

attacks were not too remote in time to be admissible. Given

that the testimony was found to be admissible, counsel
No. 03-1968 15

cannot be faulted for failing to register a futile objection.

Benefiel was not prejudiced by the failure to object.

For all these reasons, the judgment of the district court

denying Benefiel’s petition for a writ of habeas corpus is

AFFIRMED.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-30-04